1954 (12) TMI 22 - SC - Indian Laws

Writ of certiorari - Challenged the validity of election - ballot papers did not have the distinguishing marks prescribed under Rule 28 and improper reception - Interpretation of Rule 47(1)(c) of Act No. XLIII of 1951 as mandatory or directory - HELD THAT - The real controversy is as to the effect of that finding on the rights of the parties. The answer to this is to be found in section 97. Under that section all matters which could be put forward as grounds for setting aside the election of the petitioner if be had been returned under Rule 48 could be urged in answer to the prayer in his petition that he might be declared duly elected. And the result of this undoubtedly is that the first respondent could show that if the appellant had been returned under Rule 48 his election would have been liable to be set aside for breach of Rule 23 and that therefore he should not be declared elected. That according to the Tribunal having been shown it is open to us to hold that by reason of the violation of Rule 23 the appellant is not entitled to be declared elected. Under this provision the Tribunal is constituted a Court of appeal against the decision of the Returning Officer and as such its jurisdiction must be co- extensive with that of the Returning Officer and cannot extend further. If the Returning Officer had no power under Rule 47 to accept a vote which had not the distinguishing mark prescribed by Rule 28 on the ground that it was due to the mistake of the presiding officer in delivering the wrong ballot paper-it is not contended that he has any such power and clearly he has not-the Tribunal reviewing this decision under Rule 47(4) can have no such power. It cannot accept a ballot paper which the Returning Officer was bound to reject under Rule 47. In the result we must bold that in maintaining the election of the first respondent on the basis of the 301 votes which were liable to be rejected under Rule 47(1)(c) the Tribunal was plainly in error. Mr. Chatterjee would have it that this error is one of jurisdiction. We are unable to take this view because the Tribunal had jurisdiction to decide whether on a construction of section 100 (2) (c) it could go into the fact of breach of Rule 23 and if it committed an error it was an error in the exercise of its jurisdiction and not in the assumption thereof. But the error is manifest on the face of the record and calls for interference in certiorari. We have held that the election of the first respondent should be set aside. We have further held that if the Returning Officer had after rejecting the 301 ballot papers which did not bear the correct marks declared the appellant elected his election also would have to be declared void. The combined effect of section 97 and section 100(2)(c) is that there is no valid election. Under the circumstances the proper order to pass is to quash the decision of the Tribunal and remove it out of the way by certiorari under article 226 and to set aside the election of the first respondent in exercise of the powers conferred by article Appeal allowed.

Summary

Issues Involved:
1. Jurisdiction of High Courts under Article 226 to issue writs against decisions of Election Tribunals.
2. Interpretation of Rule 47(1)(c) of Act No. XLIII of 1951 as mandatory or directory.
3. Validity of Election Commission's approval of ballot papers with incorrect distinguishing marks.
4. Scope of enquiry under Section 100(2)(c) of Act No. XLIII of 1951 regarding the material effect on election results.
5. Application of Article 227 to Election Tribunals.

Issue-wise Detailed Analysis:

1. Jurisdiction of High Courts under Article 226 to issue writs against decisions of Election Tribunals:
The Supreme Court held that High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals. Article 226 confers on High Courts the power to issue appropriate writs to any person or authority within their territorial jurisdiction in absolute and unqualified terms. Election Tribunals functioning within the territorial jurisdiction of the High Courts fall within the sweep of that power. The limitation on this power must be founded on some provision in the Constitution itself, specifically Article 329(b), which bars the initiation of proceedings for setting aside an election otherwise than by an election petition. However, once proceedings have been instituted by an election petition, the requirements of Article 329(b) are fully satisfied, allowing the High Courts to exercise supervisory jurisdiction under Article 226.

2. Interpretation of Rule 47(1)(c) of Act No. XLIII of 1951 as mandatory or directory:
The Court determined that Rule 47(1)(c) is mandatory. The rule states that "a ballot paper contained in a ballot box shall be rejected if it bears any serial number or mark different from the serial numbers or marks of ballot papers authorized for use at the polling station or the polling booth at which the ballot box in which it was found was used." The Court reasoned that the use of the word "shall" indicates a mandatory requirement, and the practical bearing of the distinction between mandatory and directory provisions supports this interpretation. The Court rejected the argument that the rule should be construed as directory to avoid disfranchising voters due to the polling officer's mistake.

3. Validity of Election Commission's approval of ballot papers with incorrect distinguishing marks:
The Court held that the Election Commission's approval of the ballot papers with incorrect distinguishing marks was not valid. Rule 28 requires that ballot papers contain a serial number and distinguishing marks as decided by the Election Commission. The Commission's approval of the ballot papers after the polling did not constitute a valid change of the distinguishing mark under Rule 28. The approval was a condonation of defects in specific ballot papers rather than a prescription of a new distinguishing mark for the election as a whole. Therefore, the 301 ballot papers without the correct distinguishing marks were liable to be rejected under Rule 47(1)(c).

4. Scope of enquiry under Section 100(2)(c) of Act No. XLIII of 1951 regarding the material effect on election results:
The Court clarified that Section 100(2)(c) requires two cumulative conditions to be satisfied before an election can be set aside: (1) improper reception or refusal of a vote or non-compliance with election rules, and (2) that the result of the election was materially affected by such improper reception or non-compliance. The Tribunal had found a breach of Rule 47(1)(c), satisfying the first condition. However, the Tribunal's decision that the election result was not materially affected was based on extraneous considerations, such as the mistake of the polling officer and its effect on the result. The Court held that the enquiry under Section 100(2)(c) must be limited to the matters raised in the election petition and that the Tribunal's consideration of irrelevant factors was an error of law apparent on the face of the record.

5. Application of Article 227 to Election Tribunals:
The Court held that Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution. This superintendence is both judicial and administrative. Article 227 goes further than Section 224 of the Government of India Act, 1935, by restoring the position under Section 107 of the Government of India Act, 1915. Under Article 227, the High Court can annul the decision of the Tribunal and issue further directions. Therefore, the application for a writ of certiorari and other reliefs was maintainable under Articles 226 and 227.

Conclusion:
The Supreme Court allowed the appeal, quashed the decisions of the High Court and the Tribunal, and set aside the entire election. The Election Commission was directed to hold a fresh election. The parties were ordered to bear their own costs throughout.